Is Humphrey’s Executor About to Expire?

In October 1933, President Franklin D. Roosevelt fired William E. Humphrey from the Federal Trade Commission (FTC). Roosevelt had previously asked for Humphrey’s resignation, but Humphrey had refused. So, the President sought to exercise his prerogative to remove an officer who did not share his policy agenda. Roosevelt believed he had the Constitution and Supreme Court on his side, even if the relevant statute provided that commissioners could only be removed “for inefficiency, neglect of duty, or malfeasance in office.”

Nearly two years later (after Humphrey had passed), the Supreme Court rendered its judgment, which was not to Roosevelt’s liking. Despite holding twelve years earlier that the President had “unrestricted” power to remove executive officers, the justices concluded Roosevelt’s removal of Humphrey was unlawful. In Humphrey’s Executor v. United States (1935), a unanimous Court held that Congress could limit the President’s authority to remove officers, such as FTC commissioners, who exercise quasi-legislative and quasi-judicial (i.e. non-executive) authority. Roosevelt was furious, to the point that some believed it fueled his desire to pack the Court.

Like Roosevelt, President Donald Trump wants agency heads who are loyal and aligned with his agenda. Like Roosevelt, Trump has moved to dismiss officers who serve in positions with statutory for-cause removal protections, including some who serve on multi-member commissions structured like the FTC. Like Roosevelt, at least one of these cases will probably end up in the Supreme Court, where the justices can revisit Humphrey’s Executor and the scope of the President’s constitutional removal power.

Article II of the Constitution provides for the appointment of “Officers of the United States” by the President. Principal officers, such as those who head federal agencies, may only be appointed after the Senate provides its advice and consent. Others, so-called “inferior officers,” may be appointed directly by the President when authorized by Congress. Neither Article II nor any other provision of the Constitution expressly provides for removing officers, other than by impeachment. Thus, it should be no surprise that the extent of the President’s power to remove those he has appointed has been the subject of longstanding debate.

In Myers v. United States (1926), the Supreme Court held that the President has “unrestricted” power to remove executive branch officers. In an opinion by Chief Justice William Howard Taft, the Court held that such a power of removal flowed from the text of Article II, was implicit in the Constitution’s structure, and had been accepted by the First Congress of the United States. Specifically, Taft (a former President himself) concluded that an unqualified removal power followed from the Constitution’s “vesting” of the executive power in the President and the President’s consequent power and responsibility to “faithfully execute” the laws of the United States. Without the power to remove executive branch officers, Taft concluded, the President could not ensure that his subordinates would assist him in fulfilling his constitutional obligations, nor could the people hold the President accountable for the executive branch's actions.

Under the Myers holding, any executive branch officer appointed by the President with the Senate’s consent had to be subject to the President’s removal power without limitation. Thus, the Court concluded that President Wilson could remove Frank S. Myers from his position as First Class Postmaster of Portland, Oregon, even though Congress had set a four-year term for such positions and required Senate consent before postmasters could be removed.

Given the Myers precedent, it was understandable that President Roosevelt thought he could fire Humphrey over policy disagreements. The Supreme Court concluded otherwise largely because an FTC commissioner, unlike a postmaster, was not a “purely executive” branch officer. Rather, Congress had delegated the FTC “quasi-judicial and quasi-legislative” powers and responsibilities, including issuing reports to Congress and adjudicating charges that firms engaged in unfair trade practices. “Such a body cannot in any proper sense be characterized as an arm or an eye of the executive,” Justice Sutherland explained for the Court. Thus, it was acceptable—perhaps even obligatory—for Congress to insulate those officers exercising such authority from the President’s power of removal, thereby creating independent agencies.

The result of Humphrey’s Executor was that the President retained the power to remove principal officers within the executive branch, but Congress could insulate the heads of agencies like the FTC with for-cause removal protections. This has meant that Presidents have had untrammeled authority to remove cabinet secretaries and other high-level political appointees but could not unilaterally remove the members of multi-member commissions such as the FTC, Securities and Exchange Commission, National Labor Relations Board, Federal Communications Commission, and other like entities. Further, the Court held that while Congress could safeguard agency independence from the President by limiting removal, it could not insert itself into the removal process, such as requiring Senate approval.

Humphrey’s Executor believes some agency functions should be insulated from political influence. In practice, this has meant that so-called independent agencies often act independently of the President as a “headless fourth branch” more beholden to Congress than the White House. Whereas a new President has the opportunity to appoint a cabinet and other executive branch officials, it may take some time to assemble a sympathetic majority of commissioners on the FTC or FCC. Indeed, with staggered terms of set length—sometimes for more years than a presidential term--independent agencies may remain controlled by a political party long after it has lost a presidential election.

Humphrey’s Executor has never sat well with those who believe Article II creates a “unitary” executive branch under the President’s control. Justice Scalia recounted that the decision “was considered by many at the time the product of an activist, anti-New Deal Court bent on reducing the power of President Franklin Roosevelt.” Justice Sutherland’s opinion, “in six quick pages devoid of textual or historical precedent for the novel principle it set forth” effectively “gutt[ed]” Chief Justice Taft’s “a carefully researched and reasoned 70-page opinion” in Myers.

Justice Scalia’s distaste for Humphrey’s Executor and legislative limitations on the President’s removal power appears to be shared by a majority of the current Court. In Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), Seila Law v. Consumer Financial Protection Bureau (2020), and Collins v. Yellen (2021), the Court has read Humphrey’s Executor narrowly, refusing to allow Congress to provide a double-layer of for-cause removal protections (Free Enterprise Fund) or to allow for independent agencies headed by a single individual, as opposed to a multi-member board (Seila Law and Collins). In the process, the Court enthusiastically embraced the core principle articulated in Myers: that the President’s removal power “follows from the text of Article II.”

As Chief Justice Roberts explained in Seila Law, executive power “generally includes the power to remove executive officials,” and such authority is necessary to ensure obedience and accountability. Indeed, Roberts warned that without the power to remove dissenting executive branch officials, “the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.” Yet because it was unnecessary to overturn Humphrey’s Executor to reaffirm the president’s removal power in Seila Law and the other aforementioned cases, the court left the old precedent, but that may soon change.

Over the past month, President Donald Trump has removed many executive branch officials, including the heads of various agencies. Most notably, Trump fired National Labor Relations Board (NLRB) Chair Gwynne Wilcox because she had not been “operating in a manner consistent” with Trump’s preferred policies. Trump’s decision to fire Wilcox is significant because the NLRB is an independent agency structured like the FTC, and board members (like FTC Commissioners) have protection for-cause removal. Specifically, the National Labor Relations Act provides that Board members can be removed “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” So, whereas the Court could conclude that the President’s unrestricted removal power extended to a single-headed agency exercising substantial regulatory authority, such as the Consumer Financial Protection Bureau, without disturbing Humphrey’s Executor, it will be more difficult to execute such a move with the NLRB.

The Court may also have difficulty refusing to weigh in on whether Trump can fire the NLRB Chair because Wilcox has already filed suit in Washington, D.C., to contest her removal. The lower courts will almost certainly sustain her claim, as they remain bound by Humphrey’s precedent, and when the Solicitor General petitions for Supreme Court review, it would be shocking if the justices refused to hear the case. It is difficult to deny such a request from the Justice Department, and it only takes four justices to grant certiorari. So even if Chief Justice Roberts wants to take a pass, his colleagues may not oblige.

It is certainly possible the Court will find a way to preserve Humphrey’s Executor, in name if not in spirit. Agencies like the FTC exercise far more “executive” power than in the 1930s, including issuing regulations and enforcing federal law. Thus, today’s FTC may not fit Humphrey’s Executor rationale or merit its protection. Were five justices to accept such an argument, it would be in service of extending the President’s power to remove most existing independent agencies as they operate today while preserving Congress’ ability to recreate a New Deal-style FTC or its equivalent. It is also possible that the Wilcox case could become moot, such as if the litigation were to drag on past the end of her term in 2026 and Trump were to nominate (and the Senate were to confirm) a replacement, but this also seems unlikely. As things stand, Humphrey’s Executor might not survive much past its 90^th birthday. 

Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law. He is a contributing editor to Civitas Outlook.